ORDER DENYING MOTION TO STRIKE PLAINTIFFS’ RETALIATION CLAIM [doc. # 125]
Currently pending is defendants’ motion to strike plaintiffs’ retaliation claim based on mootness and lack of standing. The motion was fully briefed and heard on April 26, 2010. For the reasons set forth below, defendants’ motion will be denied.
1. Legal Standards
Rather than file a timely and procedurally appropriate motion under the Federal Rules of Civil Procedure, defendants chose to wаit until the time had long passed to file a dispositive motion under the Case Management Order and only as the final Pretrial Order was being prepared. At no time prior to the final pretriаl conference did defendants seek leave to file a dispositive motion, which is an appropriate means of dismissing a cause of action on the grounds mootness аnd standing. Instead, defendants filed a motion to strike under Federal Rule of Civil Procedure 12(f).
Rule
12(f)
provides that a court “may order stricken from any pleading any insufficient defense or any redundant, immaterial, impertinent, or scandalous matter.” Fed. R. Civ. P. 12(f). Motions to strike are generally disfavored because they are often used as delaying tactics and because of the limited importance of pleadings in federal practice.
See Rosales v. Citibank,
Under established law discussed above, none of the circumstances for striking a pleading are relevant here. Defendants’ attempt to assert lack of standing and mootness do not fall within the purpose of a Rule 12(f) motion. Alternatively, defendants seek in limine to preclude all evidence relating to retaliation. A motion in limine should not be used for disposition of a claim or to eviscerate a viаble claim. The Court could properly deny defendants’ motion on a procedural basis alone. Because retaliation is at issue for purposes of the upcoming trial; the Court will construe the motion as one to dismiss the third cause of action. After trial, the Court will consider whether sanctions should be imposed upon defendants for failure to comрly with the Case Management Order.
A motion to dismiss under Rule 12(b)(6) tests the sufficiency of the complaint.
Navarro v. Block,
A motion to dismiss should be granted “if plaintiffs have not pleаded ‘enough facts to state a claim to relief that is plausible on its face.’ ”
Williams ex rel. Tabiu v. Gerber Products Co.,
2. Discussion
Defendants contend the third cause of action — rеtaliation—must be dismissed because plaintiffs do not have standing to raise a claim of retaliation for a non-party to the action, 1 retaliation is specific to a pеrson or small group rather than to an entire class of present and future students, and the claim is moot.
“Title IX’s private right of action encompasses suits for retaliation becаuse retaliation falls within the statute’s prohibition of intentional discrimination on the
a. Mootness
“Generally, once a student graduates, [she] no longer has a live case or controversy justifying declaratory аnd injunctive relief against a school’s action or policy, and [her] case is therefore moot.”
Flint v. Dennison,
Defendants contend the named plaintiffs in this action are no longer students at the school and there is “not a single athlete in the class of plaintiffs whо played under Coach Martinez nor could they now play for him ... [s]o the [retaliation] claim is moot.” (Reply memo at 2.) Coach Martinez, who was terminated from CRHS in 2006, for complaining to the administration about the state of women’s softball, was replaced and the women’s softball team remains at the school. According to defendants, the Complaint does not set forth how the class plaintiffs have been or could be retaliated against with respect to the softball coaching termination of Coach Martinez.
Although two named plaintiffs, Veronica Ollier and Naudia Rangel, no longer attend CPHS and their claims for injunctive relief are moot, plaintiffs contend that this class action is not moot because two class plaintiffs are currently playing softball at CPHS and the certified class continues to be exposed to the effects of defendants’ previous retaliatory actions and the рossibility of future retaliation. Amanda Hernandez practiced with the Varsity softball team under Coach Martinez even before she became at student at CPHS. Arianna Hernandez alsо worked with Coach Martinez when she was in junior high school and was recruited by him for the high school softball team. It is undisputed that both Amanda and Arianna are current students at CPHS and play softball. Even though students do not have the right to choose their teachers or coaches, both girls assert that defendants retaliated against the plaintiff class by terminating a seven-plus year coach who successfully trained, nurtured and developed young athletes and the effects of that termination continue to be felt.
Additionally, plaintiffs’ claim for retaliation is nоt limited to the termination of Coach Martinez. Other forms of retaliation against the class are alleged in the Complaint that are not moot. Specifically, plaintiffs note the chilling effect on students who would complain about continuing gender inequality in athletic programs at the school, the barring of parents from assisting the team, and the lack of loсkers that Coach Martinez had provided to the girls’ softball team but that were removed at the direction of the school and not replaced. Finally, the class representаtives and class members have a continuing interest in ensuring defendants’ compliance with federal nondiscrimination laws.
Having reviewed the allegations in their complaint, plaintiffs havе stated a cause of action for retaliation that is not moot,
b. Standing
Defendants argue that plaintiffs fail to meet the standing requirements of case and controversy.
The test for standing appears in the familiar language of Lujan v. Defenders of Wildlife, requiring a pаrty to show three things: “First, [it] must have suffered an injury in fact—an invasion of a legally protected interest which is (a) concrete and particularized, and (b) actual or imminent, not conjectural or hypothetical. Second, there must be a causal connection between the injury and the conduct complained of.... Third, it must be likely, as opposed to merely sрeculative, that the injury will be redressed by a favorable decision.”
Coto Settlement v. Eisenberg,
Plaintiffs have standing to bring a claim for retaliation. They have set forth actions taken against the plaintiff class members after they complained of sex discrimination that are concrete and particularized. The causal connection is conceded. Finally, a favorable decision would result in an injunction which would redress the plаintiff class members’ injuries.
3. Conclusion
Based on the foregoing, IT IS ORDERED defendants’ motion to strike plaintiffs’ third cause of action for retaliation or alternatively to exclude evidence of retaliation is DENIED.
IT IS SO ORDERED.
Notes
. It appears defendants have abandoned this theory.